Wandering Dago, Inc. v. Destito
879 F.3d 20
2d Cir.2018Background
- Wandering Dago, Inc. (WD) operates a food truck that uses ethnic slurs in its business and menu branding and applied to participate in New York State Office of General Services’ (OGS) Empire State Plaza Summer Outdoor Lunch Program in 2013 and 2014.
- OGS denied WD’s 2013 application (official notice cited both offensiveness and an incomplete application) and denied WD’s 2014 application despite WD scoring above the cutoff; OGS officials conceded the denials were based solely on WD’s branding.
- Other vendors with arguably provocative names (e.g., "Slidin’ Dirty") were accepted; OGS has a stated interest in "family-friendly" programming and provides limited publicity, electricity, and water to accepted vendors.
- WD sued under 42 U.S.C. § 1983, asserting First Amendment (free speech) and Equal Protection claims and parallel claims under the New York Constitution; it sought declaratory and injunctive relief (not money damages).
- The district court granted defendants’ summary judgment; WD appealed. The Second Circuit reversed, concluding OGS engaged in unconstitutional viewpoint discrimination and erred in treating the denials as government speech or as regulation of government-contractor speech.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denying WD’s applications because of its ethnic-slur branding violated the First Amendment (viewpoint discrimination) | WD: Denial was viewpoint discrimination against protected private speech; Matal v. Tam controls | OGS: Denial was content-neutral enforcement of a family-friendly policy or permissible restriction on offensive commercial speech | Court: Denial was viewpoint discrimination; First Amendment violated — summary judgment for WD reversed against defendants |
| Whether the Lunch Program speech was government speech, allowing OGS to reject WD’s branding | WD: Vendors’ names are private speech in a forum, not government messages | OGS: By operating the program and providing assistance, OGS was conveying or subsidizing a government message and could control content | Court: Not government speech; Walker and Summum do not apply here — reasonable observer would not view vendors’ branding as OGS’s message |
| Whether WD was a prospective government contractor so Pickering/Umbehr balancing permits content restrictions | WD: Vendors are private forum speakers paying for access, not contractors whose speech can be curtailed under Umbehr | OGS: Lunch Program substitutes for prior contracting and vendors are effectively subcontractors, so contractor-speech rules apply | Court: Vendors are not government contractors for First Amendment balancing; Umbehr does not apply |
| Whether OGS’s denials also violated Equal Protection via selective enforcement | WD: Other similarly situated vendors were treated differently; denial was to punish exercise of speech rights | OGS: Denials were based on family-friendly policy and application deficiencies | Court: Differential treatment was based on impermissible intent to punish speech; Equal Protection violation established |
Key Cases Cited
- Matal v. Tam, 137 S. Ct. 1744 (Sup. Ct. 2017) (government refusal to register disparaging trademarks constituted viewpoint discrimination)
- Walker v. Texas Division, Sons of Confederate Veterans, 135 S. Ct. 2239 (Sup. Ct. 2015) (specialty license plates constitute government speech)
- Pleasant Grove City v. Summum, 129 S. Ct. 1125 (Sup. Ct. 2009) (permanent monuments on public land are government speech)
- Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 105 S. Ct. 3439 (Sup. Ct. 1985) (forum doctrine for government-organized charity drive; private speech in nonpublic forum)
- Legal Services Corp. v. Velazquez, 121 S. Ct. 1043 (Sup. Ct. 2001) (limits on viewpoint-based funding conditions when program not designed to convey government message)
- Board of County Comm’rs v. Umbehr, 116 S. Ct. 2342 (Sup. Ct. 1996) (First Amendment balancing for government contractors)